PART 1PRELIMINARY

Citation and commencement

1.  This Order may be cited as the Network Rail (Buxton Sidings Extension) Order 2017 and comes into force on 19th December 2017.

Interpretation

2.-(1) In this Order-

"the 1961 Act" means the Land Compensation Act 1961(3);

"the 1965 Act" means the Compulsory Purchase Act 1965(4);

"the 1980 Act" means the Highways Act 1980(5);

"the 1984 Act" means the Road Traffic Regulation Act(6);

"the 1990 Act" means the Town and Country Planning Act 1990(7);

"the 1991 Act" means the New Roads and Street Works Act 1991(8);

"address" includes any number or address used for the purposes of electronic transmission;

"authorised works" means the scheduled works and any other works authorised by this Order or any part of them;

"the book of reference" means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

"building" includes any structure or erection or any part of a building, structure or erection;

"carriageway" has the same meaning as in the 1980 Act;

"the deposited plans" means the plans certified by the Secretary of State as the deposited plans for the purposes of this Order;

"the deposited sections" means the sections certified by the Secretary of State as the deposited sections for the purposes of this Order;

"electronic transmission" means a communication transmitted-

"footpath" and "footway" have the same meaning as in the 1980 Act;

"highway" and "highway authority" have the same meaning as in the 1980 Act;

"the limits of deviation" means the limits of deviation for the scheduled works shown on the deposited plans;

"the limits of land to be acquired or used" means the limits of land to be acquired or used shown on the deposited plans;

"maintain" includes inspect, repair, adjust, alter, remove, reconstruct and replace, and "maintenance" is to be construed accordingly;

"Network Rail" means Network Rail Infrastructure Limited (Company registration number 02904587) whose registered office is at 1 Eversholt Street, London NW1 2DN;

"the Order limits" means the limits of deviation and the limits of land to be acquired or used;

"owner", in relation to land, has the same meaning as in Section 7 (interpretation) of the Acquisition of Land Act 1981(9);

"the scheduled works" means the works specified in Schedule 1 (scheduled works) or any part of them;

"street" includes part of a street;

"street authority", in relation to a street, has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

"the traffic regulation plan" means the plan certified by the Secretary of State as the traffic regulation plan for the purposes of this Order;

"the tribunal" means the Lands Chamber of the Upper Tribunal; and

"watercourse" includes all rivers, streams, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain.

(2) References in this Order to rights over land include references to rights to do, or to place and maintain, anything in, on or under land or in the airspace above its surface.

(3) References in this Order to numbered plots are references to plot numbers on the deposited plans.

(4) All distances, directions and lengths referred to in this Order are approximate and distances between points on a scheduled work are taken to be measured along the scheduled work.

(5) References in this Order to points by letters are to be construed as references to points on the deposited plans.

Incorporation of Railways Clauses Acts

3.-(1) The following provisions of the Railways Clauses Consolidation Act 1845(10) are incorporated in this Order-

section 58(11) (company to repair roads used by them), except for the words from "and if any question" to the end;

section 68 (accommodation works by company);

section 71 (additional accommodation works by owners), except for the words "or directed by such justices to be made by the company" and "or, in case of difference, as shall be authorised by two justices";

sections 72 and 73 (supplementary provisions relating to accommodation works);

section 75(12) (omission to fasten gates);

section 77 (presumption that minerals excepted from acquisition of land);

sections 78 to 85E(13) and Schedules 1 to 3 (minerals under railways), as respectively substituted and inserted by Section 15 of the Mines (Working Facilities and Support) Act 1923(14);

section 103(15) (refusal to quit carriage at destination);

section 105 (carriage of dangerous goods on railway), except for the words from "and if any person" to "for every such offence"; and

section 145(16) (recovery of penalties).

(2) Section 12 (signals, watchmen etc.) of the Railways Clauses Act 1863(17) is incorporated in this Order.

(3) In those provisions, as incorporated in this Order-

"the company" means Network Rail;

"goods" includes anything conveyed on the railway authorised to be constructed by this Order;

"lease" includes an agreement for a lease;

"prescribed", in relation to any such provision means prescribed by this Order for the purposes of that provision;

"the railway" means any railway authorised to be constructed by this Order and any other authorised works;

"the special Act" means this Order; and

"toll" includes any rate or charge or other payment payable under this Order or any other enactment for any passenger or goods conveyed on any railway authorised to be constructed by this Order.

Application of the 1991 Act

4.-(1) Works executed under this Order in relation to a highway which consists of or includes a carriageway are treated for the purposes of Part 3 (street works in England and Wales) of the 1991 Act as major transport works if-

(a)they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) (which defines what highway authority works are major highway works) of that Act; or

(b)they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64(18) (dual carriageways and roundabouts) of the 1980 Act.

(2) The following provisions of the 1991 Act do not apply in relation to any works executed under the powers conferred by this Order-

section 56 (directions as to timing);

section 56A (power to give directions as to placing of apparatus);

section 58 (restrictions following substantial road works);

section 73A (power to require undertaker to re-surface street);

section 73B (power to specify timing, etc., of re-surfacing);

section 73C (materials, workmanship and standard of re-surfacing);

section 78A (contributions to costs of re-surfacing by undertaker); and

Schedule 3A (restriction on works following substantial street works).

(3) The provisions of the 1991 Act mentioned in paragraph (4), together with other provisions of that Act, which apply in relation to the execution of street works, and any regulations made or code of practice issued or approved under those provisions, apply (with the necessary modifications) in relation to any stopping up, alteration or diversion of a street of a temporary nature by Network Rail under the powers conferred by article 10 (temporary stopping up of streets) and to the carrying out of works by Network Rail under article 8 (power to execute street works), whether or not the stopping up, alteration or diversion, or the carrying out of such works, constitutes street works within the meaning of that Act.

(4) The provisions of the 1991 Act(19) referred to in paragraph (3) are-

section 54(20) (advance notice of certain works), subject to paragraph (5);

section 55(21) (notice of starting date of works), subject to paragraph (5);

section 57(22) (notice of emergency works);

section 59(23) (general duty of street authority to co-ordinate works);

section 60 (general duty of undertakers to co-operate);

section 68 (facilities to be afforded to street authority);

section 69 (works likely to affect other apparatus in the street);

section 76 (liability for cost of temporary traffic regulation);

section 77 (liability for cost of use of alternative route), and

all such other provisions as apply for the purposes of the provisions mentioned above.

(5) Sections 54 and 55 of the 1991 Act as applied by paragraph (3) have effect as if references in section 57 of that Act to emergency works were a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.

(6) Nothing in article 12 (construction and maintenance of new or altered streets)-

(a)prejudices the operation of section 87 (prospectively maintainable highways) of the 1991 Act, and Network Rail is not by reason of any duty under that article to maintain a street to be taken to be a street authority in relation to that street for the purposes of Part 3 of that Act; or

(b)has effect in relation to street works with regard to which the provisions of Part 3 of the 1991 Act apply.

Disapplication of legislative provisions

5.  The following provisions do not apply in relation to any works executed under the powers conferred by this Order-

(a)section 23 (prohibition on obstacles etc. in watercourses) of the Land Drainage Act 1991(24); and

(b)the provision of any byelaws made under, or having effect as if made under, section 66 (powers to make byelaws) of the Land Drainage Act 1991, which require consent or approval for the carrying out of the works.

PART 2WORKS PROVISIONS

Principal powers

Power to construct and maintain works

6.-(1) Network Rail may construct and maintain the scheduled works.

(2) Subject to article 7 (power to deviate), the scheduled works may only be constructed in the lines or situations shown on the deposited plans and in accordance with the levels shown on the deposited sections.

(3) Network Rail may, on the land specified in columns (1) and (2) of Schedule 2 (acquisition of certain lands for ancillary works), carry out and maintain any works specified in relation to that land in column (3) of that Schedule with all necessary works and conveniences in connection with those works.

(4) Subject to paragraph (6), Network Rail may carry out and maintain such of the following works as may be necessary or expedient for the purposes of, or for purposes ancillary to, the scheduled works, namely-

(a)construction of electrical equipment, signalling and permanent way works;

(b)buildings, yards, machinery, plant, apparatus, track drainage works, fencing and other works and conveniences;

(c)approaches, ramps, stairs, passages, means of access, provision of temporary means of access, shafts and stagings;

(d)embankments, cuttings, aprons, abutments, retaining walls, wing walls and culverts;

(e)works to alter or remove any structure erected upon any highway or adjoining land;

(f)works to alter the position of apparatus, including mains, sewers, drains, cables and street furniture;

(g)works to alter the course of, or otherwise interfere with, a watercourse other than a navigable watercourse;

(h)landscaping and works to mitigate any adverse effects of the construction, maintenance or operation of the scheduled works; and

(i)works for the benefit or protection of premises affected by the scheduled works.

(5) Subject to paragraph (6), Network Rail may carry out such other works (of whatever nature) as may be necessary or expedient for the purposes of, or for purposes ancillary to, the scheduled works, other than works that would interfere with a navigable watercourse.

(6) Paragraphs (4) and (5) only authorise the carrying out or maintenance of works outside the limits of deviation if such works are carried out on-

(a)land specified in columns (1) and (2) of Schedule 2 (acquisition of certain lands for ancillary works) for the purpose specified in relation to that land in column (3) of that Schedule;

(b)land specified in columns (1) and (2) of Schedule 8 (acquisition of new rights only) for the purposes specified in relation to that land in column (3) of that Schedule; or

(c)land specified in columns (1) and (2) of Schedule 9 (land of which temporary possession may be taken) for the purposes specified in column (3) of that Schedule.

Power to deviate

7.  In constructing or maintaining any of the scheduled works, Network Rail may-

(a)deviate laterally from the lines or situations shown on the deposited plans to the extent of the limits of deviation for that work; and

(b)deviate vertically from the levels shown on the deposited sections-

(i)to any extent not exceeding 3 metres upwards; or

(ii)to any extent downwards as may be found to be necessary or convenient.

Streets

Power to execute street works

8.-(1) Network Rail may, for the purposes of the authorised works, enter upon so much of any of the streets specified in Schedule 3 (streets subject to street works) as is within the Order limits and may-

(a)break up or open the street, or any sewer, drain or tunnel under it, or tunnel or bore under the street;

(b)place apparatus in the street;

(c)maintain apparatus in the street or change its position; and

(d)execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b) and (c).

(2) In this article "apparatus" has the same meaning as in Part 3 of the 1991 Act.

Stopping up of street

9.-(1) Subject to the provisions of this article, Network Rail may, in connection with the construction of the authorised works, stop up the street specified in columns (1) and (2) of Schedule 4 (street to be stopped up for which a substitute is to be provided) to the extent specified, by reference to the letters and numbers shown on the deposited plans, in column (3) of that Schedule.

(2) The street specified in columns (1) and (2) of Schedule 4 is not to be wholly or partly stopped up under this article unless-

(a)the new street to be substituted for it, which is specified in column (4) of Schedule 4, has been completed to the reasonable satisfaction of the street authority and is open for use; or

(b)a temporary alternative route for the passage of such traffic as could have used the street to be stopped up is first provided and afterwards maintained by Network Rail, to the reasonable satisfaction of the street authority, between the commencement and termination points for the stopping up of the street until the completion and opening of the new street in accordance with sub-paragraph (a).

(3) Where a street has been stopped up under this article-

(a)all rights of way over or along the street stopped up are extinguished; and

(b)Network Rail may appropriate and use for the purposes of its railway undertaking so much of the site of the street as is bounded on both sides by land owned by Network Rail.

(4) Any person who suffers loss by the suspension or extinguishment of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) This article is subject to paragraph 2 of Schedule 11 (provisions relating to statutory undertakers etc.) and paragraph 4 of Part 1 of Schedule 12 (for the protection of specified undertakers).

Temporary stopping up of streets

10.-(1) Network Rail, during and for the purposes of the execution of the authorised works, may temporarily stop up, alter or divert any street and may for any reasonable time-

(a)divert the traffic from the street; and

(b)subject to paragraph (3), prevent all persons from passing along the street.

(2) Without limitation on the scope of paragraph (1), Network Rail may use any street stopped up under the powers conferred by this article as a temporary working site.

(3) Network Rail must provide reasonable access for pedestrians going to or from premises abutting a street affected by the exercise of the powers conferred by this article if there would otherwise be no such access.

(4) Without limitation on the scope of paragraph (1), Network Rail may exercise the powers conferred by this article in relation to the streets specified in columns (1) and (2) of Schedule 5 (streets to be temporarily stopped up) to the extent specified, in column (3) of that Schedule.

(5) Network Rail must not exercise the powers conferred by this article-

(a)in relation to any street specified in Schedule 5 without first consulting the street authority; and

(b)in relation to any other street without the consent of the street authority which may attach reasonable conditions to any consent, but such consent must not be unreasonably withheld.

(6) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(7) If within 28 days of receiving an application for consent under paragraph (5)(b) a street authority fails to notify Network Rail of its decision or refuses consent without giving any grounds for its refusal that street authority is deemed to have granted consent.

Access to works

11.-(1) Network Rail may, for the purposes of the authorised works-

(a)form and lay out means of temporary access, or temporarily improve existing means of access, at the location specified in columns (1) and (2) of Schedule 6 (access to works) at or about the point marked ‘A' on the deposited plans; and

(b)with the approval of the highway authority, such approval not to be unreasonably withheld, form and lay out such other means of access or improve existing means of access, at such locations within the Order limits as Network Rail reasonably requires for the purposes of the authorised works.

(2) If within 28 days of receiving an application for approval under paragraph (1)(b) a highway authority fails to notify Network Rail of its decision that highway authority is deemed to have given approval.

Construction and maintenance of new or altered streets

12.-(1) Any street to be constructed under this Order must be completed to the reasonable satisfaction of the highway authority and, unless otherwise agreed between Network Rail and the highway authority, must be maintained by and at the expense of Network Rail for a period of 12 months from its completion and from the expiry of that period by and at the expense of the highway authority.

(2) Where a street is altered under this Order, the altered part of the street must, when completed to the reasonable satisfaction of the street authority unless otherwise agreed with the street authority, be maintained by and at the expense of Network Rail for a period of 12 months from its completion and at the expiry of that period by and at the expense of the street authority.

(3) Paragraphs (1) and (2) do not apply in relation to the structure of any bridge or tunnel carrying a street over or under any railway of Network Rail and except as provided in those paragraphs Network Rail is not liable to maintain the surface of any street under or over which the scheduled works are constructed, or the immediate approaches to any such street.

(4) In any action against Network Rail in respect of loss or damage resulting from any failure by it to maintain a street under this article, it is a defence (without affecting any other defence or the application of the law relating to contributory negligence) to prove that Network Rail had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic.

(5) For the purposes of a defence under paragraph (4), the court must in particular have regard to the following matters-

(a)the character of the street and the traffic which was reasonably to be expected to use it;

(b)the standard of maintenance appropriate for a street of that character and used by such traffic;

(c)the state of repair in which a reasonable person would have expected to find the street;

(d)whether Network Rail knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street; and

(e)where Network Rail could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed,

but for the purposes of such a defence it is not relevant to prove that Network Rail had arranged for a competent person to carry out or supervise the maintenance of the part of the street to which the action relates unless it is also proved that Network Rail had given the competent person proper instructions with regard to the maintenance of the street and that the competent person had carried out those instructions.

Agreements with street authorities

13.-(1) A street authority and Network Rail may enter into agreements with respect to-

(a)the construction of any new street (including any structure carrying the street over or under a railway) under the powers conferred by this Order;

(b)the maintenance of the structure of any bridge constructed under the powers conferred by this Order;

(c)any stopping up, alteration or diversion of a street under the powers conferred by this Order; or

(d)the execution in the street of any of the works referred to in article 8(1) (power to execute street works).

(2) Such an agreement may, without limitation on the scope of paragraph (1)-

(a)make provision for the street authority to carry out any function under this Order which relates to the street in question; and

(b)contain such terms as to payment and otherwise as the parties consider appropriate.

Construction of bridges

14.-(1) Any bridge to be constructed under this Order for carrying a highway over or under a railway must be constructed in accordance with the plans and specification approved by the highway authority, but such approval must not be unreasonably withheld.

(2) If within 28 days of receiving an application for approval under paragraph (1) a highway authority fails to notify Network Rail of its decision or refuses approval without giving any grounds for its refusal that highway authority is deemed to have granted approval.

Supplemental powers

Discharge of water

15.-(1) Network Rail may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction or maintenance of the authorised works and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.

(2) Any dispute arising from the exercise of the powers conferred by paragraph (1) to connect to or use a public sewer or drain is to be determined as if it were a dispute under section 106 (right to communicate with public sewers) of the Water Industry Act 1991(25).

(3) Network Rail must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but must not be unreasonably withheld.

(4) Network Rail must not make any opening into any public sewer or drain except-

(a)in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and

(b)where that person has been given the opportunity to supervise the making of the opening.

(5) Network Rail must not, in the exercise of the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(6) Network Rail must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(26).

(8) If a person who receives an application for consent or approval fails to notify Network Rail of a decision within 28 days of receiving an application for consent under paragraph (3) or approval under paragraph (4)(a) that person is deemed to have granted consent or given approval, as the case may be.

(9) In this article-

(a)"public sewer or drain" means a sewer or drain which belongs to a sewerage undertaker, the Environment Agency, an internal drainage board or a local authority; and

(b)other expressions, excluding watercourses, used both in this article and in the Water Resources Act 1991(27) have the same meaning as in that Act.

Protective works to buildings

16.-(1) Subject to the following provisions of this article, Network Rail may at its own expense carry out such protective works to any building lying within the Order limits as Network Rail considers to be necessary or expedient.

(2) Protective works may be carried out-

(a)at any time before or during the construction in the vicinity of a building of any part of the authorised works; or

(b)after the completion of the construction of that part of the authorised works in the vicinity of a building at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised works is first opened for use.

(3) For the purpose of determining how the functions under this article are to be exercised Network Rail may (subject to paragraph (5)) enter and survey any building falling within paragraph (1) and any land within its curtilage.

(4) For the purpose of carrying out protective works under this article to a building Network Rail may (subject to paragraphs (5) and (6))-

(a)enter the building and any land within its curtilage; and

(b)where the works cannot be carried out reasonably conveniently without entering land which is adjacent to a building but outside its curtilage, enter the adjacent land (but not any building erected on it).

(5) Before exercising-

(a)a right under paragraph (1) to carry out protective works to a building;

(b)a right under paragraph (3) to enter a building and land within its curtilage;

(c)a right under paragraph (4)(a) to enter a building and land within its curtilage; or

(d)a right under paragraph (4)(b) to enter land,

Network Rail must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days' notice of its intention to exercise that right and, in a case falling within subparagraph (a) or (c), specifying the protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building to be referred to arbitration under article 42 (arbitration).

(7) Network Rail must compensate the owners and occupiers of any building or land in relation to which the powers conferred by this article have been exercised for any loss or damage arising to them by reason of the exercise of those powers.

(8) Where-

(a)protective works are carried out under this article to a building; and

(b)within the period of 5 years beginning with the day on which the part of the authorised works constructed in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the construction or operation of that part of the authorised works,

Network Rail must compensate the owners and occupiers of the building for any loss or damage sustained by them.

(9) Without affecting article 41 (no double recovery) nothing in this article relieves Network Rail from any liability to pay compensation under section 10(2)(28) (further provision as to compensation for injurious affection) of the 1965 Act.

(10) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, under Part 1 of the 1961 Act.

(11) In this article "protective works" in relation to a building means-

(a)underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the construction, maintenance or operation of the authorised works;

(b)any works the purpose of which is to remedy any damage which has been caused to the building by the construction, maintenance or operation of the authorised works; and

(c)any works the purpose of which is to secure the safe operation of the authorised works or to prevent or minimise the risk of such operation being disrupted.

Power to survey and investigate land

17.-(1) Network Rail may for the purposes of this Order-

(a)survey or investigate any land shown within the Order limits;

(b)without limitation on the scope of sub-paragraph (a), make trial holes in such positions as Network Rail thinks fit on the land to investigate the nature of the surface layer and subsoil and remove soil samples;

(c)without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land;

(d)place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes; and

(e)enter on the land for the purpose of exercising the powers conferred by sub-paragraphs (a) to (d).

(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1), unless at least 7 days' notice has been served on every owner and occupier of the land.

(3) Any person entering land under this article on behalf of Network Rail-

(a)must, if so required, before or after entering the land produce written evidence of authority to do so; and

(b)may take onto the land such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.

(4) No trial holes are to be made under this article-

(a)in a carriageway or footway without the consent of the highway authority; or

(b)in a private street without the consent of the street authority,

but such consent must not be unreasonably withheld.

(5) Network Rail must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(6) Nothing in this article obviates the need to obtain scheduled monument consent under the Ancient Monuments and Archaeological Areas Act 1979(29).

(7) If either a highway authority or street authority fails to notify Network Rail of its decision within 14 days of receiving an application for consent-

(a)under paragraph 4(a) in the case of a highway authority; or

(b)under paragraph 4(b) in the case of a street authority,

that authority is deemed to have granted consent.

PART 3ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Power to acquire land

18.-(1) Network Rail may acquire compulsorily-

(a)so much of the land shown on the deposited plans within the limits of deviation as land to be acquired compulsorily and described in the book of reference as may be required for the purposes of the authorised works; and

(b)so much of the land specified in columns (1) and (2) of Schedule 2 (acquisition of certain lands for ancillary works) (being land shown on the deposited plans and described in the book of reference) as may be required for the purpose specified in relation to that land in column (3) of that Schedule,

and may use any land so acquired for those purposes or for any other purposes that are ancillary to its railway undertaking.

(2) This article is subject to article 21 (power to acquire new rights) and article 23 (temporary use of land for construction of works).

Application of Part 1 of the 1965 Act

19.-(1) Part 1 of the 1965 Act, in so far as not modified by or inconsistent with the provisions of this Order, applies to the acquisition of land under this Order-

(a)as it applies to a compulsory purchase to which the Acquisition of Land Act 1981(30) applies; and

(b)as if this Order were a compulsory purchase order under that Act.

(2) Part 1 of the 1965 Act, as so applied, has effect with the following modifications.

(3) Omit section 4 (which provides a time limit for compulsory purchase of land).

(4) In section 4A(1)(31) (extension of time limit during challenge) for "section 23 of the Acquisition of Land Act 1981 (application to the High Court in respect of compulsory purchase order), the three year period mentioned in section 4", substitute "section 22 of the Transport and Works Act 1992 (validity of orders under section 1 or 3), the three year period mentioned in article 28 (time limit for exercise of powers of acquisition) of the Network Rail (Buxton Sidings Extension) Order 2017(32)".

(5) In section 11(1B)(33) (powers of entry) in a case where the notice to treat relates only to the acquisition of an easement or other right over land, for "3 months" substitute "1 month".

(6) In section 11A(34) (powers of entry: further notices of entry)-

(a)in subsection (1)(a), after "land" insert "under that provision";

(b)in subsection (2), after "land" insert "under that provision".

(7) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for "section 4 of this Act" substitute "article 28 (time limit for exercise of powers of acquisition) of the Network Rail (Buxton Sidings Extension) Order 2017(35)".

(8) In Schedule 2A(36) (counter-notice requiring purchase of land not in notice to treat)-

(a)for paragraphs 1(2) and 14(2) substitute-

"(2) But see article 22(3) (power to acquire subsoil or airspace) of the Network Rail (Buxton Sidings Extension) Order 2017, which excludes the acquisition of subsoil or airspace only from this Schedule."; and

(b)after paragraph 29, insert-

"PART 4INTERPRETATION

30.  In this Schedule, references to entering on and taking possession of land do not include doing so under article 16 (protective works to buildings), 23 (temporary use of land for construction of works) or 24 (temporary use of land for maintenance of works) of the Network Rail (Buxton Sidings Extension) Order 2017."

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

20.-(1) The Compulsory Purchase (Vesting Declarations) Act 1981(37) applies as if this Order were a compulsory purchase order.

(2) The Compulsory Purchase (Vesting Declarations) Act 1981, as applied by paragraph (1), has effect with the following modifications.

(3) In section 5 (earliest date for execution of declaration), in subsection (2), omit the words from ", and this subsection" to the end.

(4) Omit section 5A(38) (time limit for general vesting declaration).

(5) In section 5B(39) (extension of time limit during challenge) for "section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A" substitute "section 22 of the Transport and Works Act 1992 (validity of orders under section 1 or 3), the three year period mentioned in article 28 (time limit for exercise of powers of acquisition) of the Network Rail (Buxton Sidings Extension) Order 2017".

(6) In section 6(40) (notices after execution of declaration), in subsection (1)(b), for "section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981" substitute "section 14A of the Transport and Works Act 1992".

(7) In section 7(41) (constructive notice to treat) in subsection (1)(a), omit "(as modified by section 4 of the Acquisition of Land Act 1981)".

(8) In Schedule A1(42) (counter-notice requiring purchase of land not in general vesting declaration) for paragraph 1(2) substitute-

"(2) But see article 22(3) (power to acquire subsoil or airspace) of the Network Rail (Buxton Sidings Extension) Order 2017, which excludes the acquisition of subsoil or airspace only from this Schedule."

(9) References to the 1965 Act are construed as references to that Act as applied to the acquisition of land under article 18 (power to acquire land) by article 19 (application of Part 1 of the 1965 Act).

Power to acquire new rights

21.-(1) Network Rail may acquire compulsorily such easements or other rights over any land referred to in paragraph (1)(a) or (b) of article 18 (power to acquire land) as may be required for any purpose for which that land may be acquired under that provision, by creating them as well as by acquiring easements or other rights already in existence.

(2) In the case of the land specified in Schedule 8 (acquisition of new rights only) Network Rail's powers of compulsory acquisition are limited to the acquisition of such new rights as may be required for the purpose specified in relation to that land in column (2) of that Schedule.

(3) Subject to Schedule 2A (counter-notice requiring purchase of land) to the 1965 Act (as substituted by paragraph 5(8) of Schedule 7 (modification of compensation and compulsory purchase enactments for creation of new rights)) where Network Rail acquires a right over land under paragraph (1) or (2) Network Rail is not required to acquire a greater interest in that land.

(4) Schedule 7 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right.

(5) In any case where the acquisition of new rights under paragraph (1) is required for the purpose of diverting, replacing or protecting apparatus for an undertaker Network Rail may, with the consent of the Secretary of State, transfer the power to acquire such rights to the undertaker in question.

(6) The exercise by an undertaker of any power in accordance with a transfer under paragraph (5) is subject to the same restrictions, liabilities and obligations as would apply under this Order if that power were exercised by Network Rail.

(7) In paragraphs (5) and (6) "undertaker" means any person who is a statutory undertaker for the purposes of the 1990 Act.

Power to acquire subsoil or airspace only

22.-(1) Network Rail may acquire compulsorily so much of, or such rights in, the subsoil of or the airspace over the land referred to in paragraph (1)(a) or (b) or article 18 (power to acquire land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) Where Network Rail acquires any part of, or rights in, the subsoil of or the airspace over land under paragraph (1), Network Rail is not required to acquire an interest in any other part of the land.

(3) The following do not apply in connection with the exercise of the power under paragraph (1) in relation to subsoil or airspace only-

(a)Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act;

(b)Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the Compulsory Purchase (Vesting Declarations) Act 1981; and

(c)section 153(4A) (blighted land: proposed acquisition of part interest; material detriment test) of the Town and Country Planning Act 1990.

(4) Paragraphs (2) and (3) are to be disregarded where Network Rail acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory or airspace above a house, building or manufactory.

Temporary possession of land

Temporary use of land for construction of works

23.-(1) Network Rail may, in connection with the carrying out of the authorised works-

(a)enter upon and take temporary possession of-

(i)the land specified in columns (1) and (2) of Schedule 9 (land of which temporary possession may be taken) for the purposes specified in relation to that land in column (3) of that Schedule relating to the scheduled works specified in column (4) of that Schedule; and

(ii)any other land within the Order limits in respect of which no notice of entry has been served under section 11(43) (powers of entry) of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been made under section 4(44) of the Compulsory Purchase (Vesting Declarations) Act 1981;

(b)remove any buildings and vegetation from that land;

(c)construct temporary works (including the provision of means of access) and buildings on that land; and

(d)construct any permanent works specified in relation to that land in column (3) of Schedule 9 or any other permanent mitigation works.

(2) Not less than 14 days before entering upon and taking temporary possession of land under this article Network Rail must serve notice of the intended entry on the owners and occupiers of the land.

(3) Network Rail may not, without the agreement of the owners of the land, remain in possession of any land under this article-

(a)in the case of land specified in columns (1) and (2) of Schedule 9, after the end of the period of one year beginning with the date of completion of the scheduled works specified in relation to that land in column (4) of Schedule 9; or

(b)in the case of land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the work for which temporary possession of the land was taken unless Network Rail has, before the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981.

(4) Before giving up possession of land of which temporary possession has been taken under this article, Network Rail must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land, but Network Rail is not required to-

(a)replace a building removed under this article; or

(b)restore the land on which any works have been constructed under paragraph (1)(d).

(5) Network Rail must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.

(6) Any dispute as to a person's entitlement to compensation under paragraph (5), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act.

(7) Without affecting article 41 (no double recovery), nothing in this article affects any liability to pay compensation under section 10(2)(45) (further provisions as to compensation for injurious affection) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5).

(8) The powers of compulsory acquisition of land conferred by this Order do not apply in relation to the land referred to in paragraph (1)(a)(i) except that Network Rail is not precluded over any part of that land from acquiring new rights under article 21 (power to acquire new rights).

(9) Where Network Rail takes possession of land under this article, it is not required to acquire the land or any interest in it.

(10) Section 13(46) (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the acquisition of land under this Order by virtue of article 19(1) (application of Part 1 of the 1965 Act).

Temporary use of land for maintenance of works

24.-(1) Subject to paragraph (2), at any time during the maintenance period relating to any of the scheduled works, Network Rail may-

(a)enter upon and take temporary possession of any land within the Order limits if such possession is reasonably required for the purpose of maintaining the work or any ancillary works connected with it; and

(b)construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.

(2) Paragraph (1) does not authorise Network Rail to take temporary possession of-

(a)any house or garden belonging to a house; or

(b)any building (other than a house) if it is for the time being occupied.

(3) Not less than 28 days before entering upon and taking temporary possession of land under this article Network Rail must serve notice of the intended entry on the owners and occupiers of the land.

(4) Network Rail may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of works for which possession of the land was taken.

(5) Before giving up possession of land of which temporary possession has been taken under this article, Network Rail must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

(6) Network Rail must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.

(7) Any dispute as to a person's entitlement to compensation under paragraph (6), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act.

(8) Without affecting article 41 (no double recovery), nothing in this article affects any liability to pay compensation under section 10(2) (further provisions as to compensation for injurious affection) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (6).

(9) Where Network Rail takes possession of land under this article, it is not required to acquire the land or any interest in it.

(10) Section 13 (refusal to give possession to the acquiring authority) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the acquisition of land under this Order by virtue of article 19(1) (application of Part 1 of the 1965 Act).

(11) In this article "the maintenance period", in relation to the scheduled works, means the period of 5 years beginning with the date on which the work is opened for use.

Compensation

Disregard of certain interests and improvements

25.-(1) In assessing the compensation payable to any person on the acquisition from that person of any land under this Order, the tribunal must not take into account-

(a)any interest in land; or

(b)any enhancement of the value of any interest in land by reason of any building erected, works executed or improvement or alteration made on relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

(2) In paragraph (1) "relevant land" means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works executed or the improvement or alteration made, directly or indirectly concerned.

Set-off for enhancement in value of retained land

26.-(1) In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including the subsoil) the tribunal must set off against the value of the land so acquired any increase in value of any contiguous or adjacent land belonging to that person in the same capacity which will accrue to that person by reason of the construction of the authorised works.

(2) In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil) under this Order, the tribunal must set off against the value of the rights so acquired-

(a)any increase in the value of the land over which the new rights are required; and

(b)any increase in value of any contiguous or adjacent land belonging to that person in the same capacity,

which will accrue to that person by reason of the construction of the authorised works.

(3) The 1961 Act has effect, subject to paragraphs (1) and (2), as if this Order were a local enactment for the purposes of that Act.

Supplementary

Extinction or suspension of private rights of way

27.-(1) Subject to the provisions of this article all private rights of way over land subject to compulsory acquisition under this Order are extinguished-

(a)as from the date of acquisition of the land by Network Rail, whether compulsorily or by agreement; or

(b)on the date of entry on the land by Network Rail under section 11(1)(47) (powers of entry) of the 1965 Act,

whichever is the sooner.

(2) Subject to the provisions of this article in respect of land owned by Network Rail and required for the purposes of this Order all private rights of way are extinguished on the appropriation of the land for any of those purposes by Network Rail.

(3) Subject to the provisions of this article, all private rights of way over land subject to the compulsory acquisition of rights under this Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right-

(a)as from the date of the acquisition of the right by Network Rail, whether compulsorily or by agreement; or

(b)on the date of entry on the land by Network Rail under section 11(1) of the 1965 Act in pursuance of the right,

whichever is the sooner.

(4) Subject to the provisions of this article all rights of way over land of which Network Rail takes temporary possession under this Order are suspended and unenforceable for as long as Network Rail remains in lawful possession of the land.

(5) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(6) This article does not apply in relation to any right of way to which section 271 or 272 (extinguishment of rights of statutory undertakers etc.) of the 1990 Act(48) applies.

(7) Paragraphs (1), (2), (3) and (4) have effect subject to-

(a)any notice given by Network Rail before-

(i)the completion of the acquisition of;

(ii)Network Rail's appropriation of;

(iii)Network Rail's entry onto;

(iv)or Network Rail taking temporary possession of,

the land, that any or all of those paragraphs do not apply to any right of way specified in the notice; and

(b)any agreement made (whether before or after any of the events mentioned in sub-paragraph (a) and before or after the coming into force of this Order) which makes reference to this article between Network Rail and the person in or to whom the right of way in question is vested or belongs.

(8) Any such agreement as is mentioned in sub-paragraph (7)(b) which is expressed to have effect also for the benefit of those deriving title from or under the person in or to whom the right of way in question is vested or belongs, is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

Time limit for exercise of powers of acquisition

28.-(1) After the end of the period of 3 years beginning with the day on which this Order comes into force-

(a)no notice to treat is to be served under Part 1 of the 1965 Act as applied to the acquisition of land by article 19 (application of Part 1 of the 1965 Act); and

(b)no declaration is to be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 20 (application of the Compulsory Purchase (Vesting Declarations) Act 1981).

(2) The powers conferred by article 23 (temporary use of land for construction of works) cease at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents Network Rail remaining in possession of land after the end of that period, if the land was entered and possession of it was taken before the end of that period.

PART 4MISCELLANEOUS AND GENERAL

Defence to proceedings in respect of statutory nuisance

29.-(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisances) of the Environmental Protection Act 1990(49) in relation to a nuisance falling within paragraph (g) of section 79(1)(50) (noise emitted from premises so as to be prejudicial to health or a nuisance) of that Act, no order is to be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows-

(a)that the nuisance relates to premises used by Network Rail for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to authorised works and that the nuisance is attributable to the carrying out of authorised works which are being carried out in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61(51) (prior consent for work on construction sites), of the Control of Pollution Act 1974(52); or

(b)that the nuisance is a consequence of the operation of the authorised works and that it cannot reasonably be avoided.

(2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by Network Rail for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.

(3) The provisions of this article do not affect the application to the authorised works of section 122 (statutory authority as a defence to actions in nuisance, etc.) of the Railways Act 1993(53) or any rule of common law having similar effect.

Planning permission

30.  Planning permission which is deemed by a direction under section 90(2A)(54) (development with government authorisation) of the 1990 Act to be granted in relation to the authorised works is to be treated as specific planning permission for the purposes of section 264(3)(a) (cases in which land is to be treated as operational land for the purposes of that Act) of that Act.

Power to lop trees overhanging the authorised works

31.-(1) Network Rail may fell or lop any tree or shrub near any part of the authorised works, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub-

(a)from obstructing or interfering with the construction, maintenance or operation of the authorised works or any apparatus used on the authorised works; or

(b)from constituting a danger to passengers or other persons using the authorised works.

(2) In exercising the powers conferred by paragraph (1), Network Rail must not cause unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from the exercise of those powers.

(3) Any dispute as to a person's entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined under Part 1 of the 1961 Act.

Power to operate and use railway

32.-(1) Network Rail may operate and use the railway and other authorised works as a system, or part of a system, of transport for the carriage of passengers and goods.

(2) Nothing in this Order, or in any enactment incorporated with or applied by this Order, affects the operation of Part 1 (the provision of railway services) of the Railways Act 1993.

Obstruction of construction of authorised works

33.  Any person who, without reasonable excuse-

(a)obstructs any person acting under the authority of Network Rail in setting out the lines of the scheduled works or in constructing any authorised work; or

(b)interferes with, moves or removes any apparatus belonging to any person acting under the authority of Network Rail,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Temporary traffic regulation

34.-(1) Subject to the provisions of this article Network Rail, may for the purposes of and during the construction of the authorised works-

(a)make provision as to the restriction on the speed of vehicular traffic in the manner specified in Schedule 10 (temporary traffic regulation) on the street specified in column (3) between the points and to the extent specified in column (4) of that Schedule; and

(b)so far as may be necessary or expedient for the purposes of or in connection with construction of the authorised works-

(i)revoke, amend or suspend in whole or in part any order made, or having effect as if made, under the 1984 Act;

(ii)permit, prohibit or restrict the stopping, waiting, loading or unloading of vehicles on any road;

(iii)suspend or authorise the use as a parking place of any road;

(iv)make provision as to the direction or priority of vehicular traffic on any road; and

(v)permit or prohibit vehicular access to any road,

either at all times or at times, on days or during such periods as may be specified by Network Rail.

(2) The powers conferred by paragraph (1)(b) may only be exercised after Network Rail has consulted the chief officer of police and such other persons as it considers necessary and appropriate, after Network Rail has taken into consideration any representations made to it by any such person and after Network Rail has obtained the consent of the traffic authority in whose area the road concerned is situated (which must not be unreasonably withheld but may be given subject to reasonable conditions).

(3) Network Rail must not exercise the powers conferred by this article in relation to any road unless it has-

(a)given not less than 4 weeks' notice in writing of its intention so to do to the chief officer of police and to the traffic authority in whose area the road is situated; and

(b)advertised its intention in such manner as the traffic authority may within 7 days of its receipt of notice of Network Rail's intention specify in writing.

(4) Any prohibition, suspension or other provision made by Network Rail under paragraph (1) has effect as if duly made by, as the case may be-

(a)the traffic authority in whose area the road is situated, as a traffic regulation order under the 1984 Act; or

(b)the local authority in whose area the road is situated, as an order under section 32 (power of local authorities to provide parking spaces) of the 1984 Act(55),

and the instrument by which it is effected may specify savings and exemptions (in addition to those mentioned in Schedule 10) to which the prohibition, restriction or other provision is subject.

(5) Any prohibition, restriction or other provision made under this article may be suspended, varied or revoked by Network Rail from time to time by subsequent exercise of the powers of paragraph (1).

(6) Expressions used in this article and in the 1984 Act have the same meaning in this article as in that Act.

(7) The powers conferred on Network Rail by this article with respect to any road have effect subject to any agreement entered into by Network Rail with any person with an interest in (or who undertakes activities in relation to) premises served by the road.

Traffic signs

35.-(1) Network Rail may, for the purposes of the construction of the authorised works, place or maintain traffic signs on any street within the Order limits or which gives access to such a street, or on any street in connection with any instrument made under article 34 (temporary traffic regulation) or any other street as reasonably required for conveying information to traffic.

(2) Network Rail-

(a)must consult with the traffic authority as to the placing of traffic signs; and

(b)may, subject to any directions given under section 65 (powers and duties of highway authorities as to placing of traffic signs) of the 1984 Act, enter into arrangements with the consent of the traffic authority for the traffic signs to be placed and maintained by the traffic authority, such consent not to be unreasonably withheld.

(3) Any power conferred by section 65 of the 1984 Act to give directions to a traffic authority or local traffic authority as to traffic signs includes a power to give directions to Network Rail as to traffic signs under this article; and the powers conferred by paragraph (1) are exercisable subject to and in conformity with any directions given under that section.

(4) A traffic authority or other authority having power under or by virtue of the 1984 Act to place and maintain, or cause to be placed and maintained, traffic signs on any street referred to in paragraph (1) must consult with Network Rail as to the placing of any traffic signs which may affect the authorised works.

(5) Expressions used in this article and in the 1984 Act have the same meaning in this article as in that Act.

Disclosure of confidential information

36.  A person who-

(a)enters a factory, workshop or workplace under the provisions of article 16 (protective works to buildings) or article 17 (power to survey and investigate land); and

(b)discloses to any person any information obtained as a result of that entry and relating to any manufacturing process or trade secret,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale unless the disclosure is made in the course of that person's performance of a duty in connection with the purposes for which the person was authorised to enter the land.

Statutory undertakers etc.

37.  The provisions of Schedule 11 (provisions relating to statutory undertakers etc.) have effect.

Protection of interests

38.  Schedule 12 (protective provisions) has effect.

Certification of plans etc.

39.  Network Rail must, as soon as practicable after the making of this Order, submit copies of the book of reference, the deposited plans, the deposited sections and traffic regulation plan to the Secretary of State for certification that they are, respectively, true copies of the book of reference, the deposited plans, the deposited sections and the traffic regulation plan referred to in this Order; and a document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Service of notices

40.-(1) A notice or other document required or authorised to be served for the purposes of this Order may be served-

(a)by post; or

(b)with the consent of the recipient and subject to paragraphs (6) to (8) by electronic transmission.

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978(56) as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise-

(a)in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

(b)in any other case, the last known address of that person at the time of service.

(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by-

(a)addressing it to that person by name or by the description of "owner", or as the case may be "occupier", of the land (describing it); and

(b)either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is taken to be fulfilled where the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission either in writing or by electronic transmission.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or any part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of electronic transmission given by a person may be revoked by that person in accordance with paragraph (8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order-

(a)that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

(b)such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

(9) This article does not exclude the employment of any method of service not expressly provided for by it.

No double recovery

41.  Compensation is not payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.

Arbitration

42.  Any difference under any provision of this Order, unless otherwise provided for, must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.

SCHEDULES

Article 2

SCHEDULE 1SCHEDULED WORKS

In the County of Derbyshire, District of High Peak-

Work No. 1 – A railway (695 metres in length) forming an extension of existing sidings commencing at a point 150 metres east of the junction of Williamson Avenue with Ladycroft and terminating at a point 355 metres south of the junction of Brown Edge Road with Footpath FP4.

Work No. 2 – A footbridge (42 metres in length) commencing at a point 140 metres east of the junction of Brown Edge Road with Brown Edge Close and terminating at a point 230 metres north-west of the junction of Nunsfield Road with Barms Way.

Work No. 3 – A diversion of an electricity cable (35 metres in length) commencing beneath a point 140 metres east of the junction of Brown Edge Road with Brown Edge Close and terminating beneath a point 180 metres east of that junction.

Article 6 and 18

SCHEDULE 2ACQUISITION OF CERTAIN LANDS FOR ANCILLARY WORKS

Article 8

SCHEDULE 3STREETS SUBJECT TO STREET WORKS

Article 9

SCHEDULE 4STREET TO BE STOPPED UP FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

Article 10

SCHEDULE 5STREETS TO BE TEMPORARILY STOPPED UP

Article 11

SCHEDULE 6ACCESS TO WORKS

Article 21

SCHEDULE 7MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

Compensation enactments

1.  The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply with the necessary modifications as respects compensation in the case of a compulsory acquisition under this Order of a right by the creation of a new right as they apply as respects compensation on the compulsory purchase of land and interests in land.

2.-(1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the following modification set out in sub-paragraph (2).

(2) For section 5A(5A) (relevant valuation date) of the 1961 Act substitute-

"(5A) If-

(a)the acquiring authority enter on land for the purposes of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 7 to the Network Rail (Buxton Sidings Extension) Order 2017 ("the 2017 Order"));

(b)the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 7 to the 2017 Order) to acquire an interest in the land; and

(c)the acquiring authority enter on and takes possession of that land,

the authority is deemed for the purposes of subsection (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right."

3.-(1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973(57) has effect subject to the modifications set out in sub-paragraph (2).

(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5(3)-

(a)for the words "land is acquired or taken" substitute "a right over land is purchased"; and

(b)for the words "acquired or taken from him" substitute "over which the right is exercisable".

Application of Part 1 of the 1965 Act

4.  Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied by article 19 (application of Part 1 of the 1965 Act) to the acquisition of land under article 18 (power to acquire land), applies to the compulsory acquisition of rights under article 21(1) or (2) (power to acquire new rights)-

(a)with the modification specified in paragraph 5; and

(b)with such other modifications as may be necessary.

5.-(1) The modifications referred to in paragraph 4(a) are as follows.

(2) References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the particular context) as referring to, or as including references to-

(a)the right acquired or to be acquired; or

(b)the land over which the right is or is to be exercisable.

(3) For section 7 (measure of compensation in the case of severance) of the 1965 Act substitute-

"7.  In assessing the compensation to be paid by the acquiring authority under this Act regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right, but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act."

(4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say-

(a)section 9(4) (failure by owners to convey);

(b)paragraph 10(3) of Schedule 1 (owners under incapacity);

(c)paragraph 2(3) of Schedule 2 (absent and untraced owners); and

(d)paragraphs 2(3) and 7(2) of Schedule 4 (common land),

are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired is vested absolutely in the acquiring authority.

(5) Section 11(58) (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right, as well as the notice of entry required by subsection (1) of that section (as it applies to a compulsory acquisition under article 18(1)), it has power, exercisable in the equivalent circumstances and subject to the equivalent conditions, to enter for the purpose of exercising that right; and sections 11A(59) (powers of entry: further notices of entry), 11B(60) (counter-notice requiring possession to be taken on specified date), 12(61) (penalty for unauthorised entry) and 13(62) (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.

(6) Section 20(63) (protection for interests of tenants at will etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right in question.

(7) Section 22 (interests omitted from purchase) of the 1965 Act (as modified by article 19(7)) is modified so as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

(8) For Schedule 2A to the 1965 Act substitute-

"SCHEDULE 2ACOUNTER-NOTICE REQUIRING PURCHASE OF LAND

Introduction

1.-(1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over the whole or part of a house, building or factory.

(2) But see article 22(3) (power to acquire subsoil or airspace only) of the Network Rail (Buxton Sidings Extension) Order 2017, which excludes the acquisition of subsoil or airspace only from this Schedule.

2.  In this Schedule "house" includes any park or garden belonging to a house.

Counter-notice requiring purchase of land

3.  A person who is able to sell the house, building or factory ("the owner") may serve a counter-notice requiring the authority to purchase the owner's interest in the house, building or factory.

4.  A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.

Response to counter-notice

5.  On receiving a counter-notice, the authority must decide whether to-

(a)withdraw the notice to treat;,

(b)accept the counter-notice, or

(c)refer the counter-notice to the Upper Tribunal.

6.  The authority must serve notice of its decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served ("the decision period").

7.  If the authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period.

8.  If the authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.

9.  If the authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in the house, building or factory.

Determination by Upper Tribunal

10.  On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right would-

(a)in the case of a house, building or factory, cause material detriment to the house, building or factory, or

(b)in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.

11.  In making its determination, the Upper Tribunal must take into account-

(a)the effect of the acquisition of the right,

(b)the proposed use of the right to be acquired, and

(c)if the right is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.

12.  If the Upper Tribunal determines that the acquisition of the right would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the acquiring authority ought to be required to take.

13.  If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in that land.

14.-(1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.

(2) If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.

(3) Any dispute as to the compensation is to be determined by the Upper Tribunal."

Articles 6 and 21

SCHEDULE 8ACQUISITION OF NEW RIGHTS ONLY

Articles 6 and 23

SCHEDULE 9LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

Article 34

SCHEDULE 10TEMPORARY TRAFFIC REGULATION

Articles 9 and 37

SCHEDULE 11PROVISIONS RELATING TO STATUTORY UNDERTAKERS ETC.

Apparatus of statutory undertakers etc. on land acquired

1.-(1) Sections 271 to 274(64) (extinguishment of rights of statutory undertakers etc.) of the 1990 Act apply in relation to any land acquired or appropriated by Network Rail under this Order subject to the following provisions of this paragraph; and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282(65), which provide for the payment of compensation) have effect accordingly.

(2) In the provisions of the 1990 Act, as applied by sub-paragraph (1), references to the appropriate Minister are references to the Secretary of State.

(3) Where any apparatus of public utility undertakers or of a public communications provider is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by sub-paragraph (1), any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from Network Rail compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(4) Sub-paragraph (3) does not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that paragraph, any person who is-

(a)the owner or occupier of premises the drains of which communicated with that sewer; or

(b)the owner of a private sewer which communicated with that sewer,

is entitled to recover from Network Rail compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer communicate with any other public sewer or with a private sewerage disposal plant.

(5) The provisions of the 1990 Act mentioned in sub-paragraph (1), as applied by that paragraph, do not have effect in relation to apparatus as respects which Part 3 of the 1991 Act applies.

(6) In this Schedule-

"public communications provider" has the same meaning as in section 151(1) (interpretation of Chapter 1) of the 2003 Act(66); and

"public utility undertakers" has the same meaning as in the 1980 Act(67).

Apparatus of statutory undertakers etc. in stopped up streets

2.-(1) Where a street is stopped up under this Order any statutory utility whose apparatus is under, in, upon, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this paragraph, as if this Order had not been made.

(2) Where a street is stopped up under this Order any statutory utility whose apparatus is under, in, upon, over, along or across the street may, and if reasonably requested to do so by Network Rail must-

(a)remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the utility may reasonably determine and have power to place it; or

(b)provide other apparatus in substitution for the existing apparatus and place it in that other position.

(3) Subject to sub-paragraphs (4) to (7), Network Rail must pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with-

(a)the execution of the relocation works required in consequence of the stopping up of the street; and

(b)the doing of any other work or thing rendered necessary by the execution of the relocation works.

(4) If in the course of the execution of relocation works under sub-paragraph (2)-

(a)apparatus of a better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus; or

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by Network Rail, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the statutory utility by virtue of sub-paragraph (3) is to be reduced by the amount of that excess.

(5) For the purposes of sub-paragraph (4)-

(a)an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

(6) An amount which apart from this sub-paragraph would be payable to a statutory utility in respect of works by virtue of sub-paragraph (3) (and having regard, where relevant, to sub-paragraph (4)) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

(7) Sub-paragraphs (3) to (6) do not apply where the authorised works constitute major transport works for the purposes of Part 3 of the 1991 Act, but instead-

(a)the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and

(b)the allowable costs are to be borne by Network Rail and the statutory utility in such proportions as may be prescribed by any such regulations.

(8) In this paragraph-

"apparatus" has the same meaning as in Part 3 of the 1991 Act;

"relocation works" means work executed, or apparatus provided, under sub-paragraph (2); and

"statutory utility" means a statutory undertaker for the purposes of the Highways Act 1980 or a public communications provider as defined in paragraph 1(6).

3.  Nothing in this Schedule affects the provisions of any enactment or agreement regulating the relations between Network Rail and an undertaker in respect of any apparatus laid or erected in land belonging to Network Rail on the date on which the Order is made.

Articles 9 and 38

SCHEDULE 12PROTECTIVE PROVISIONS

PART 1FOR THE PROTECTION OF SPECIFIED UNDERTAKERS

1.-(1) For the protection of the undertakers referred to in this Part of this Schedule the following provisions have effect unless otherwise agreed in writing between Network Rail and the undertakers concerned.

(2) The provisions of Schedule 11 (provisions relating to statutory undertakers etc.), in so far as they relate to the removal of apparatus, do not apply in relation to apparatus to which this Part of this Schedule applies.

2.  In this Part of this Schedule-

"alternative apparatus" means alternative apparatus adequate to enable the undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;

"apparatus" means-

and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

"functions" includes powers and duties;

"in", in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or upon land; and

"undertaker" means-

for the area of the authorised works, and in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained.

3.  This Part of this Schedule does not apply to apparatus in respect of which the relations between Network Rail and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.

4.-(1) Where any street is stopped up under article 9 (stopping up of street), any undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up, but nothing in this paragraph affects any right of Network Rail or the undertaker to require the removal of that apparatus under paragraph 6(2) or the power of Network Rail to carry out works under paragraph 8.

(2) Network Rail must give not less than 28 days' notice in writing of its intention to stop up any street under article 9 to any undertaker whose apparatus is in that street.

5.  Without affecting any provision in this Order or anything shown on the deposited plans Network Rail must not acquire any apparatus other than by agreement.

6.-(1) If, in the exercise of the powers conferred by this Order, Network Rail acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of an undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker in question.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, Network Rail requires the removal of any apparatus placed in that land, it must give to the undertaker in question written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order an undertaker reasonably needs to remove any of its apparatus) Network Rail must, subject to sub-paragraph (3), afford to the undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of Network Rail and for the subsequent maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of Network Rail, or Network Rail is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the undertaker in question must, on receipt of a written notice to that effect from Network Rail, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) Any alternative apparatus to be constructed in land of Network Rail under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the undertaker in question and Network Rail or in default of agreement settled by arbitration in accordance with article 42 (arbitration).

(5) The undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 42, and after the grant to the undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by Network Rail to be removed under the provisions of this Part of this Schedule.

(6) Without affecting anything in sub-paragraph (5), if Network Rail gives notice in writing to the undertaker in question that it desires itself to execute any work to which this sub-paragraph applies, that work, instead of being executed by the undertaker, must be executed by Network Rail without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the undertaker.

(7) Sub-paragraph (6) applies to any part of any work necessary in connection with construction of alternative apparatus, or the removal of apparatus required to be removed, as will take place in any land of Network Rail.

(8) Nothing in sub-paragraph (6) authorises Network Rail to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

7.-(1) Where, in accordance with the provisions of this Part of this Schedule, Network Rail affords to an undertaker facilities and rights for the construction and maintenance in land of Network Rail of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between Network Rail and the undertaker in question or in default of agreement settled by arbitration in accordance with article 42 (arbitration).

(2) In settling those terms and conditions in respect of the alternative apparatus to be constructed in or along any railway, the arbitrator must-

(a)give effect to all reasonable requirements of Network Rail for ensuring the safety and efficient operation of the railway and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of Network Rail or the traffic on the railway; and

(b)so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to the apparatus constructed in or along the railway for which the alternative apparatus is to be substituted.

(3) If the facilities and rights to be afforded by Network Rail in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by Network Rail to that undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

8.-(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 6(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by Network Rail under paragraph 6(2), Network Rail must submit to the undertaker in question a plan, section and description of the works to be executed.

(2) Those works are to be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and an officer of the undertaker is entitled to watch and inspect the execution of those works.

(3) Any requirements made by the undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) If an undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by Network Rail, reasonably requires the removal of any apparatus and gives written notice to Network Rail of that requirement, paragraphs 1 to 7 apply as if the removal of the apparatus had been required by Network Rail under paragraph 6(2).

(5) Nothing in this paragraph precludes Network Rail from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(6) Network Rail is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

9.-(1) If in consequence of the exercise of the powers conferred by this Order the access to any apparatus is materially obstructed Network Rail must provide such alternative means of access to such apparatus as will enable the undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.

(2) Subject to the following provisions of this paragraph, Network Rail must repay to an undertaker the reasonable expenses incurred by that undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 6(2).

(3) The value of any apparatus removed under the provisions of this Part of this Schedule is to be deducted from any sum payable under sub-paragraph (2), that value being calculated after removal.

(4) If in accordance with the provisions of this Part of this Schedule-

(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by Network Rail or, in default of agreement, is not determined by arbitration in accordance with article 42 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the undertaker in question by virtue of sub-paragraph (2), is to be reduced by the amount of that excess.

(5) For the purposes of sub-paragraph (4)-

(a)an extension of apparatus to a length greater than the length of existing apparatus must not be treated as placing of apparatus of greater dimensions than those of the existing apparatus; and

(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole must be treated as if it also had been agreed or had been so determined.

(6) An amount which apart from this sub-paragraph would be payable to an undertaker in respect of works by virtue of sub-paragraph (2) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

10.-(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the works referred to in paragraph 6(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of an undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any undertaker, Network Rail must-

(a)bear and pay the cost reasonably incurred by that undertaker in making good such damage or restoring the supply; and

(b)make reasonable compensation to that undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker,

by reason or in consequence of any such damage or interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on Network Rail with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an undertaker, its officers, servants, contractors or agents.

(3) An undertaker must give Network Rail reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of Network Rail, which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

11.  Nothing in this Part of this Schedule affects the provision of any enactment or agreement regulating the relations between Network Rail and an undertaker in respect of any apparatus laid or erected in land belonging to Network Rail on the date on which this Order is made.

PART 2FOR THE PROTECTION OF LEAD LOCAL FLOOD AUTHORITIES

12.-(1) The following provisions of this Part of this Schedule apply for the protection of the lead local flood authority unless otherwise agreed in writing between Network Rail and the lead local flood authority.

(2) In this Part of this Schedule-

"construction" includes execution, placing, altering, replacing, relaying and removal and "construct" and "constructed" are to be construed accordingly;

"drainage work" means any watercourse and includes any land which provides or is expected to provide flood storage capacity for any ordinary watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence;

"lead local flood authority" means in relation to an ordinary watercourse the lead local flood authority concerned within the meaning of section 23 of the Land Drainage Act 1991(71);

"ordinary watercourse" has the meaning given by the Land Drainage Act 1991;

"plans" includes sections, drawings, specifications and method statements; and

"specified work" means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to affect any drainage work.

13.-(1) Before beginning to construct any specified work, Network Rail must submit to the lead local flood authority plans of the specified work and such further particulars available to it as the lead local flood authority may within 28 days of the submission of the plans reasonably require.

(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the lead local flood authority, or determined under paragraph 20.

(3) Any approval of the lead local flood authority required under this paragraph-

(a)must not be unreasonably withheld or delayed;

(b)is deemed to have been given if within 2 months of the submission of the plans for approval or receipt of further particulars if such particulars have been required by the lead local flood authority-

(i)it is neither given nor refused; or

(ii)in the case of a refusal, a statement of the grounds of refusal has not been provided; and

(c)may be given subject to such reasonable requirements as the lead local flood authority may make for the protection of any drainage work.

(4) The lead local flood authority must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

14.  Without limitation on the scope of paragraph 13, the requirements which the lead local flood authority may make under that paragraph include conditions requiring Network Rail at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary-

(a)to safeguard any drainage work against damage; or

(b)to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

15.-(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the lead local flood authority under paragraph 14, must be constructed-

(a)without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; and

(b)to the reasonable satisfaction of the lead local flood authority,

and an officer of the lead local flood authority is entitled to watch and inspect the construction of such works.

(2) Network Rail must give to the lead local flood authority not less than 14 days' notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is brought into use.

(3) If any part of a specified work or any protective work required by the lead local flood authority is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the lead local flood authority may by notice in writing require Network Rail at Network Rail's own expense to comply with the requirements of this Part of this Schedule.

(4) Subject to sub-paragraph (5), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (3) is served upon Network Rail, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the lead local flood authority may execute the works specified in the notice and any expenditure incurred by it in so doing is recoverable from Network Rail.

(5) In the event of any dispute as to whether sub-paragraph (3) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the lead local flood authority must not except in emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.

16.-(1) Subject to sub-paragraph (3) Network Rail must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation or on land held by Network Rail for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.

(2) If any such drainage work which Network Rail is liable to maintain is not maintained to the reasonable satisfaction of the lead local flood authority, the lead local flood authority may by notice in writing require Network Rail to repair and restore the work, or any part of such work, or (if Network Rail so elects and the lead local flood authority in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the lead local flood authority reasonably requires.

(3) This paragraph does not apply to-

(a)drainage works which are vested in the lead local flood authority, or which the lead local flood authority or another person is liable to maintain and is not prescribed by the powers of the Order from doing so, and

(b)any obstruction of a drainage work for the purposes of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule.

17.  If by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by Network Rail to the reasonable satisfaction of the lead local flood authority and if Network Rail fails to do so, the lead local flood authority may make good the impairment or damage and recover from Network Rail the expense reasonably incurred by it in so doing.

18.-(1) Network Rail must pay all costs, charges and expenses which the lead local flood authority may reasonably incur or have to pay-

(a)in the examination or approval of plans under this Part of this Schedule; and

(b)in the inspection of the construction of the specified works or any protective works required by the lead local flood authority under this Part of this Schedule.

19.  The fact that any work or thing has been executed or done by Network Rail in accordance with a plan approved or deemed to be approved by the lead local flood authority, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve Network Rail from any liability under the provisions of this Part of this Schedule.

20.  Any dispute arising between Network Rail and the lead local flood authority under this Part of this Schedule, if the parties agree, is to be determined by arbitration under article 42 (arbitration).

EXPLANATORY NOTE

(This note is not part of the Order)

This Order authorises Network Rail Infrastructure Limited to construct, operate and maintain an extension to the existing sidings at Buxton, Derbyshire together with associated works. This will enable longer freight trains to be accommodated on the Buxton to Edgeley Junction Passenger Line to increase freight capacity between the Peak Forest and Hope Valley quarry terminals and London via Dore South Junction and the Midland Mainline.

The Order also authorises the construction of a new section of footbridge to extend the existing bridged public right of way over the new railway works.

The Order authorises the acquisition of land and rights in land, and the use of land, for those purposes and confers powers in connection with the construction and operation of the railway.

Copies of the deposited plans, deposited sections, traffic regulation plan and the book of reference referred to in the Order may be inspected at the offices of the Company Secretary and Solicitor to Network Rail Infrastructure Limited at 1 Eversholt Street, London NW1 2DN.